On March 5, 2019, the Government of Canada appointed Matthew Boswell as Canada’s new Commissioner of Competition. Mr. Boswell most recently served as Interim Commissioner of Competition, and has previously served in various leadership roles at the Bureau since 2011, including heading up both the Bureau’s cartels branch and mergers branch. Commissioner Boswell assumes leadership of the Bureau at a time when the Bureau will be facing a number of important challenges.
KEY CHALLENGES FOR THE NEW COMMISSIONER
- Enforcement in the Digital Economy
The Bureau will need to continue to account for the increasing importance of digital products and services in the global economy. An emerging concern is the exponential growth of data available to businesses, which presents new opportunities for the introduction of innovative new products and services, but may also raise antitrust concerns by providing a competitive advantage for established businesses and potentially creating obstacles for new entrants.
Further, Commissioner Boswell will be responsible for determining the extent to which Bureau enforcement will focus on privacy concerns. The Bureau has previously identified privacy as a potential non-price element of competition and observed that inadequate or misleading disclosure regarding the protection of customers’ privacy could result in enforcement.
- Fighting Price Fixing
The Bureau revamped its immunity and leniency programs in the Fall of 2018 (see our October 2018 Blakes Bulletin: Important Recent Competition Law Developments in Canada). The changes were designed to incent cartelists to approach the Bureau with information that could provide the basis for enforcement action. Commissioner Boswell will be responsible for implementing and monitoring the success of these new programs.
Commissioner Boswell will also likely ensure that cartel enforcement remains robust. As the Bureau discussed in its publication on big data and innovation, big data and algorithms may have the potential to facilitate cartel-like behaviour.
- Regulatory Proliferation and Agency Overlaps
Canada is a world leader in economic productivity, but such productivity is threatened by regulatory proliferation. In heavily regulated sectors, Canadian businesses must often navigate a slew of different regulatory agencies and regimes, where responsibility is not clearly delineated between agencies. The lack of a coordinated approach introduces costs and inefficiencies that harm Canadian productivity and consumers. Commentators have stressed that recent efforts in the United States to reduce regulatory burdens on businesses may result in a decline in Canada’s relative competitiveness.
One of Commissioner Boswell’s most important responsibilities will be to work with other government agencies to promote efficiency in regulatory activity and provide certainty to Canadian businesses. Any efforts by the Commissioner in this regard are likely to focus on the elimination of unnecessary regulatory and government intervention, while clearly delineating responsibility between the Bureau and other regulatory agencies.
- Cooperating with Foreign Agencies
Canada is an international leader in competition law development and collaboration. The Bureau is increasingly working closely with its foreign counterparts when reviewing global transactions and has cooperation instruments in place with 14 jurisdictions, including the United States, the European Union, and the United Kingdom. Further, the Bureau’s recent activities included a meeting with the U.S. and Mexican antitrust authorities to reinforce North American cooperation in competition law enforcement.
We expect that Commissioner Boswell will continue to foster collaboration with foreign agencies, especially when such foreign agencies undertake enforcement activities that resolve competition issues in Canada. Relying on foreign agencies will help provide certainty and predictability to companies looking to invest in Canada, while at the same time allowing the Bureau to divert resources to other enforcement activities that could have a positive impact on Canadian consumers and the economy.
ABOUT THE COMPETITION BUREAU
The Bureau is responsible for the administration and enforcement of the Competition Act in Canada. Its mandate includes antitrust merger reviews, investigating cartels and other anti-competitive behaviour, and reviewing misleading advertising and marketing practices.
Fiscal Year: Key Facts and Figures (2017-2018)
- Merger reviews concluded: 131
- Merger-related consent agreements implemented: 6
- Supplementary information requests issued: 10
- Cartel investigations closed: 18
- Fines imposed in cartel cases: C$14.8-million
- Digital economy cases commenced: 30
- Meetings with foreign law enforcement agencies or competition authorities: 31
Competition Bureau’s Structure: An Organizational Chart
Please click on the image to enlarge our organizational chart of Canada’s Competition Bureau.